Visa Lawyer Blog

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Another evidence that the Immigration debate is heating up here in San Diego and across the nation. For the first time, Border Patrol agents formally sealed off access on the U.S. side to the plaza, for years a popular meeting place on the U.S.-Mexico border for families to visit through the fence.

The Department of Homeland Security announced late last year that it will prohibit all public access to the park where a secondary wall is under construction. Since then, the plaza has become a symbolic touchstone for those who debate border enforcement policies.

A phalanx of Border Patrol agents in off-road vehicles blocked access to the plaza entrance, causing demonstrators on both sides of the issue to gather below the bluff.

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Last year, the H-1B cap was reached after a one-week filing window starting April 1st. CIS received over 143,000 petitions for the basic quota, and 31,000 for the Masters Cap, resulting in a lottery selection process. The 11,000 not selected for the Masters level H-1B cap were returned to the basic pool and had “two bites at the apple.”

This year, we expect another lottery for both categories. Due to the recession, petition volume is expected to be significantly reduced, with perhaps a better than 65% success rate for the basic group and a 90% success rate for the advanced degree holders. An employer may only submit one petition per candidate.

Employers should review their 2009/2010 employment needs to determine the benefits of participating in this year’s H-1B cycle. Although the start date on the petition must be October 1, 2009, an approval is good for three years and the employment may actually begin later. Of particular concern are current employees with expiring status: F-1 OPT Practical Trainee, TN TradeNAFTA or J-1 Practical Trainee.

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The Nursing Relief Act of 2009 has been introduced into the House of Representatives as bill HR 1001. The bill is a very good one for nurses and US patients. Unfortunately, we are a little skeptical that such a bill can survive the legislation process because of the economic crisis and other factors. Unlike the 2007 Bill, we hope that the current members of the House will see the urgent need to pass this now. Nevertheless, we are encouraged by activity and we applaud the sponsors and co-cosponsors of the bill and the underlying facilities that pushed for the bill.

The purpose of this Act is to create a new nonimmigrant visa category for registered nurses and establish admission requirements for such nonimmigrants.

The Congress finds the following:

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U.S. Representative Luis V. Gutierrez (D-IL) announced that he will spearhead a five-week national tour—visiting 14 U.S. cities—to document the harm caused to citizens across our nation in the absence of comprehensive immigration reform.

In an unprecedented nationwide campaign, Gutierrez has partnered with local communities and churches to hold rallies for thousands of U.S. citizens whose families have been or risk being torn apart by our broken immigration system. Many members of the Congressional Hispanic Caucus are also holding similar events in their districts.

We wish him good luck in his efforts and hope for more signs towards an Immigration Reform soon.

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The U.S. military will begin recruiting skilled immigrants living in this country with temporary visas, offering them the chance to become U.S. citizens in as little as six months.

Immigrants who are permanent residents, with documents commonly known as green cards, have long been eligible to enlist. The new effort, for the first time since the Vietnam War, will open the armed forces to temporary immigrants if they’ve lived in the United States for a minimum of two years, and have not left from more than 90 days during that time.

In recent years, as U.S. forces faced combat in two wars and recruiters struggled to meet goals for the all-volunteer military, thousands of legal immigrants with temporary visas who tried to enlist were turned away because they lacked permanent green cards, recruiting officers said. Recruiters’ work became easier in the past.

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Nothing exciting about the March Visa Bulletin. The EB2 cutoff dates for India and China continued to move forward. There is also some forward movement in EB3 for China and Mexico.

EB2 category remains current for all countries except for India and China, which show forward movement again, with cutoff dates moving by approximately 1.5 months for both countries. The cutoff date for India moved to February 15, 2004. China has a cutoff date of February 15, 2005.

EB3 no changes in the cutoff dates, other than for China and Mexico. The cutoff date for “all chargeability areas except those listed” remains at May 1, 2005; the Philippines has the same cutoff date. India also remains unchanged, backlogged at October 15, 2001. The cutoff date for Mexico has advanced by over four months, to August 15, 2003.

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AILA and the U.S. Chamber of Commerce sent a letter to all Senators urging them to oppose Sen. Sanders’ H-1B amendment to the stimulus bill (H.R. 1), which would prevent U.S. employers who using TARP funds from accessing highly skilled, professional foreign talent that would allow them to stay competitive in the global marketplace.

U.S. Sens. Bernie Sanders (I-Vt.) and Chuck Grassley (R-Iowa) had proposed legislation last week to prohibit any firm that received money under the Troubled Assets Relief Program (TARP) from hiring foreign workers. The amendment passed last week, part of the stimulus plan being debated in the Senate,set a series of strict standards on H-1B hiring.

The Senate’s amendment would require companies receiving TARP funds, mostly financial services firms, to comply with hiring rules set for “H-1B dependent” firms — those with more than 15% of their workers on H-1B visas. Any firm receiving TARP funds will be automatically considered H-1B dependent, regardless of the percentage of H-1B workers on the payroll.

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I previously reported on changes to the H2B visa program. On December 19, 2008, DHS published in the Federal Register a final rule “Changes to Requirements Affecting H-2B Nonimmigrants,” which provides that the Secretary of Homeland Security will publish a list of designated countries whose nationals can be the beneficiaries of an approved H-2B petition and are eligible for H-2B visas. This initial list will be composed of countries that are important for the operation of the H-2B program.

Pursuant to the final rule, this notice designates those countries the Secretary of Homeland Security, with the concurrence of the Secretary of State, has found to be eligible to participate in the H-2B program:

Argentina;

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The Labor Department has released its projections for when it will phase in the new versions of the LCA Form ETA 9035 and the PERM Form ETA 9089.

The Deptartment of Labor indicates that its implementation timing for the new LCA Form ETA-9035 is:

– It will begin receiving the new form for processing on April 15, 2009.

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The The Administrative Review Board found that the employer in that case failed to report termination of the H-1B employee as required and is liable for back wages. It noted that periods of unproductiveness were not due to unwillingness or unavailability of the employee to work, thus are compensable. Administrator, Wage & Hour Div. v. Help Foundation of Omaha, Inc. et al.

Key points in this case are: (1) the ARB found that it was appropriate to award wages beyond the termination of actual employment until the time when employer filed a notification and request with the USCIS to revoke the H1B petition; and (2) the back-wage award was granted against the H1B company, as well as against the company owner, individually.

This problem is avoidable simply by paying workers, as required in the Labor Condition Application (LCA); or, if there is not sufficient work, filing an H1B amendment or terminating the H1B, as needed, in compliance with the DOL regulations.